TOP

In recent years, the use of the criminal law to prosecute HIV-positive individuals for engaging in activities that may transmit HIV has attracted great attention. The position in Statute Law is imprecise; neither English nor Scots Law carry specific legislation to accommodate criminal prosecutions for HIV transmission, and rely therefore upon use of common and case law.

When and where does it all begin?
1888: In the landmark/public case of Regina v Clarence, it is held that the transmission of an STI cannot amount to the offence of “inflicting grievous bodily harm” under the Offences Against the Person Act 1861 (England and Wales), because the term “infliction” implies some sort of attack, rather than simply causing harm.
1992: There was a media outcry after a HIV-positive man was accused of deliberately infecting four women with HIV. It was thought at the time that no criminal law applied to the case, and so no prosecution was brought. The Home Secretary states in Parliament that there were no plans to legislate to make the deliberate transmission of HIV a criminal offence.
1993: The Law Commission published a review of the law on offences against the person, proposing that there should be new offences covering the reckless and intentional transmission of diseases, including HIV.
1997: The Law Lords decided, in Regina v Ireland, that a man who causes psychiatric injury to a woman by means of silent telephone calls can be guilty of “inflicting grievous bodily harm”. This is important, because it has been interpreted as effectively overturning the decision in Regina v Clarence, and thus opened the door to prosecutions for the reckless transmission of HIV under English law.
1998: However, a prosecution was brought in York for the transmission of Hepatitis B, but the trial judge ruled (seemingly on the basis of the Clarence case) that this could not be a criminal offence.
1999: the Home Office publishes a consultation paper following on from the 1993 Law Commission proposals, suggesting that there should be legislation to make it an offence to deliberately – but not recklessly – transmit HIV or other diseases.
2001: First conviction in the UK for the transmission of HIV: Stephen Kelly was convicted in Scotland (where a different system of criminal law applies) of the offence of “reckless injury” after infecting his girlfriend with HIV.
2002: A prosecution was brought in London for the transmission of viral herpes (Regina v. Sullivan) but was dropped after the judge heard that the complainant had sought hospital treatment for the symptoms of herpes ten months before having sex with the defendant.
February 2003: the first English prosecution for the transmission of HIV (the Masozi Mvula case) was abandoned after evidence emerged that the defendant did not know she was HIV-positive at the time of the alleged offence.
October 2003: The first English conviction for the transmission of HIV – Mohammed Dica (see below) was convicted of two counts of “unlawfully and maliciously inflicting grievous bodily harm”.
January 2004: Kouassi Adaye (see below) pleads guilty to one charge of inflicting grievous bodily harm by transmitting HIV.
May 2004: Court of Appeal hears an appeal against Dica’s convictions and confirms that the reckless transmission of HIV is an offence under English law – the Clarence case no longer represented the law - but quashed Dica’s convictions and orders a retrial on the basis of a misdirection by the trial judge on the effect of consent. The court confirms that consent by the complainant to the risk of infection is a valid defence to a charge of recklessly transmitting HIV.
May 2004: Very shortly after the Court of Appeal’s decision in the Dica case, Feston Konzani was convicted of three counts of inflicting grievous bodily harm by transmitting HIV. His appeal against conviction was dismissed in March 2005.
March 2005: After a fourth trial (the second having been abandoned for unspecified legal reasons, and the third abandoned after the jury failed to reach a verdict), Mohammed Dica was convicted of one count of inflicting grievous bodily harm by transmitting HIV (one of the complainants in the first trial having felt no longer able to give evidence).
April 2005: Paulo Matias pleaded guilty to one charge of inflicting grievous bodily harm by transmitting HIV.
May 2005: Two further Scottish prosecutions for the reckless transmission of HIV were halted: one (Giovanni Mola) because the accused was no longer in Scotland and could not immediately be brought back from Italy to stand trial; a second (Christopher Walker) because the accused was found unfit to stand trial and was ordered to be detained in a psychiatric hospital.
April 2006 Isleworth, Middlesex. This case was the first where a man was convicted of passing HIV on to another man. News reports indicate that he pleaded guilty because he was advised that the “scientific proof” which formed the basis of the prosecution case was particularly strong. However, because the case never went to trial, it is impossible to know whether or not the virological evidence presented by the prosecution would in fact have been certain enough to lead to a conviction.
After his conviction the man disappeared and was not present in August 2006 when he was sentenced to four years and three months in prison for reckless transmission of HIV.
June 2006, Inner London: In June 2006 a woman from South London, pleaded guilty to recklessly passing on HIV to one man, and was sentenced to 32 months in prison.
A worrying feature of this case was the way in which the investigation was carried out. The ex-partner who originally complained to the police that the woman had HIV and was having unprotected sex was not in fact HIV positive himself. However, on discovering that the defendant had HIV, the police seem to have actively investigated her previous sexual partners, one of whom decided to take a case against her.
Press reporting of this case was highly sensationalist and largely inaccurate. Despite the conviction for reckless transmission, tabloid newspapers speculated that the infection was “deliberate” and that the woman was “seeking revenge”.
November 2006: A Merseyside man pleaded guilty to passing HIV on to a woman with whom he had an eight month relationship.
However, newspaper coverage hinted that both he and the women may have had mental health problems and that the woman’s family were involved in the decision to bring a prosecution. The defence lawyer also reportedly told the court that his client believed he had originally got HIV after giving someone mouth-to-mouth resuscitation, which is unheard of and highly unlikely. Reports suggested that he could be in denial about his HIV diagnosis, and that this may have explained why he did not disclose his HIV status to his partner.
The man was sentenced to two and a half years in prison.
January 2007 A Bournemouth man was convicted in January 2007 of recklessly passing HIV on to his female partner.
He pleaded guilty to the charge and was sentenced to three and a half years in prison. His female partner alleged that she had felt pressured into having unprotected sex after he assured her he did not have HIV
February 2007 An Italian man was originally charged with the Scottish offence of reckless conduct in 2005 and was found guilty in 2007 of passing HIV and Hepatitis C on to his former female partner. This was the first successful prosecution in the UK for sexual transmission of Hep C. During the case it was alleged that the man had repeatedly refused to use condoms and that he did not tell his girlfriend that he had either HIV or Hep C. Although the man admitted all the charges against him except one, he consistently denied refusing to use condoms and so the trial pitted his word against that of the complainant.
The judge in this case said that if the man could prove that he followed medical advice and even though he didn’t disclose his status he always used condoms, he could not be considered to have acted “recklessly”. However, this was never proved in court and in April, the man was sentenced to nine years in prison. This is one of the longest sentences given so far in the UK for an offence of this kind. The judge also recommended that he be deported back to Italy after serving his sentence.

Types of transmission.
Deliberate (or 'Intentional')
The most serious offence that can be committed. Some international cases of deliberate transmission have involved individuals (both HIV+ and HIV-) who have used needles or other implements to intentionally infect others with HIV. Others have been based on HIV+ people who have had sex with the primary purpose and deliberate intent of transmitting the virus to their partner. Mercifully, to date there have been no known cases of this type in the UK as far as we are aware.
Reckless
This is where HIV is passed on through a careless rather than deliberate act. If for example a person who knows they have HIV has unprotected sex with a negative person, but fails to inform them of the risk involved, this could be classed as reckless transmission in court. "Reckless" here implies that transmission did take place, but that this happened as part of the pursuit of sexual gratification rather than because the HIV+ person actually wanted to give their partner HIV (HIV is of course not 'automatically' transmitted every time someone has unprotected sex.)
Accidental
This is the most common way that HIV is passed on. A person is generally said to have accidentally transmitted HIV if:
-They were unaware that they had the virus, and therefore did not feel the need to take measures to protect their partner.
-They were aware of their HIV+ status and they used a condom during sex, but the condom failed in some way.

Deciding if someone has deliberately, recklessly or accidentally transmitted HIV is not easy. The divisions between each of the three categories can be very blurred, and depend largely on individual interpretation. Even after a decision has been made, a court may still have a hard time deciding whether to find someone guilty or not. Some of the most problematic issues include:

Proof
It might appear that proof is a straightforward issue, but proving that someone has passed on HIV can be exceedingly difficult.
-Firstly it needs to be proven that the accused (let's call them A) was definitely the source of the accuser's (B) HIV. This is normally done by comparing the DNA of the virus that A and B are infected with. If they are the same (or very similar), then it is very likely that A caused B's infection. If they are different then it means B almost certainly did not acquire HIV from A, and the case would be probably be thrown out.

-Secondly, if the DNA matches, it needs to be proven that A definitely caused B’s infection and not the other way round. Sometimes this can be demonstrated by how advanced each person's illness is, but this isn't always possible. Often, the only definitive proof would be a negative test on B that was performed after A received a positive test.

Finally, in cases where intentional or deliberate transmission needs to be proven, evidence needs to be found that A actively intended and wanted to infect B. Unless there is physical proof of this (e.g. a syringe filled with HIV+ material, a note, or a written confession), it can often just be one person's word against another. With cases of sexual transmission, proving intention can be virtually impossible as the very nature of sexual HIV transmission means there are no witnesses: what happens in the bedroom is essentially private. If no evidence of deliberate transmission could be found therefore, a charge of reckless or careless transmission would probably be chosen.

Most criminal convictions involving sexual disease transmission are brought about because an infected person has failed to inform their uninfected partner about their status. In some cases, the positive person may have actively lied in response to a direct question in order to persuade their partner to have unprotected sex. In others, they may simply not have mentioned their condition.
Consent is a vitally important issue. If the accused had simply not mentioned they are HIV+, then the prosecution would probably argue that they had been reckless by not disclosing their status and not informing their partner of the risks involved in intercourse. However, the defence could well counter this by saying that the balance of responsibility is 50:50, and that by agreeing to having unprotected sex, the ‘victim’ effectively consented to all the risks involved, including that of HIV. This argument was used in the appeal trial of Mohammed Dica, the first person in England to be accused of recklessly transmitting HIV.
If the accused had actively deceived their partner, and told them they were negative when they were not, then the prosecution could quite easily argue that the 50:50 balance of responsibility had been taken away, making the accused more liable to prosecution.
The argument that non-disclosure equals guilt could potentially even be applied if the person on trial had used a condom. Some say that sex with a condom, but without disclosure of status should also count as reckless transmission. This is because condoms are not always 100% effective. If a condom fails therefore, and an individual becomes infected with HIV, there is potential for that person to accuse their partner of being 'reckless' for having withheld information that may have influenced their decision to have sex. "Assumed Status" and "Trust" are also important considerations in any lawsuit.

The Role of the Police
There have been cases in the UK (such as the Sarah Jane Porter case) where police have assumed that because HIV transmission can now be a criminal offence, it is acceptable to fully investigate any HIV+ person about whom they receive a complaint. In some cases, this will involve actively raiding the accused’s home for evidence of HIV+ status or demanding medical records from HIV clinics. Police have also been known to track down past partners to inform them of their risk, or even to persuade them to testify against the accused individual. There are therefore major implications regarding privacy laws and medical confidentiality.

Landmark Cases/Rulings

Pavlos Georgiou, March 1997. One of the first ever trials held for deliberate transmission, Georgiou was a Cypriot fisherman who infected his British lover, Janette Pink, during a holiday romance. After several years of trying, Ms Pink eventually managed to persuade the Cypriot courts to bring him to trial in 1997, and he was subsequently sentenced to 15 months in prison. I mention it only because the case coincided with a UK government announcement that the 1861 Offences against the Person Act was to be revised to specify that the deliberate (but not reckless) transmission of illnesses could be made a criminal offence punishable by anything up to a life sentence. The revisions were however never passed by parliament, and the act remained unchanged, allowing the first ever case of reckless transmission to be brought to court in the UK in 2003, the Mohammed Dica case.
Mohammed Dica Case, March 2005: Kenyan-born with family in Somalia, Dica lived in Mitcham, SW London. In the first ever HIV transmission conviction in England and Wales, he was found guilty of reckless (rather than deliberate) Grievous Bodily Harm against two women and was sentenced to 8 years in prison in November 2003. However, in March 2004 he appealed, claiming that he had not been allowed to give evidence that suggested the women had fully consented to the risks of unprotected sex with him. A retrial was ordered and began in June 2004, but was later halted due to questions over the validity of documents submitted by one of the complainants. This woman subsequently withdrew her complaint and dropped out of the trial. In December 2004, a third hearing was held, this time with only one complainant, but the jury failed to reach a verdict. A fourth and final hearing in March 2005 however found him guilty on one count of GBH and he was jailed for four and a half years.
The Dica trial caused concern among many AIDS and human rights organisations, as UK Law Commission guidelines recommended that only cases of deliberate transmission ever be brought to trial. However, the prosecution believed it had a case, as Dica was alleged to have actively persuaded one of the women not to use condoms, even though he knew he was HIV+. He also led the other to believe he was HIV negative and a rich single lawyer, when in fact he was HIV positive, unemployed and married with children.
Feston Konzani: an asylum seeker from Malawi, living on Teeside, was jailed for 10 years for infecting three women with HIV via unprotected sex. Convicted of infecting three women with HIV via unprotected sex. His lawyers appealed against his both his actual conviction and the length of his sentence. The Court of Appeal rejected Konzani’s defence arguments that the conviction was unsafe because the jury was not asked to consider if he had a “guilty mind”, and because the judge in the initial trial gave restrictive directions on the issue of consent. Rejecting the defence arguments, the appeal court judges said that Konzani had “deceived” the three women and “there is not the slightest evidence, direct or indirect, from which a jury could begin to infer that the appellant honestly believed that any complainant consented to that specific risk (of contracting HIV).” Concerning the 10-year sentence, the Appeal Court judges ruled that it was “neither manifestly excessive nor wrong in principle.”
Kouassi Adaye: an asylum seeker from South Africa,was jailed for 4 years. Adaye had never received a diagnosis of being HIV-positive, but he was charged on the basis that a GP had told him he was at high risk of having HIV.
Sarah Jane Porter Case, June 2006: Sarah Jane Porter of London was charged with Grievous Bodily Harm through the reckless transmission of HIV. Her case is a good example of some of the reasons why many AIDS organisations are against the criminalisation of reckless HIV transmission.
Firstly, her accuser, a former boyfriend, was not the man who made the original complaint to the police - he was HIV negative – but someone the police tracked down in the course of their investigations, and persuaded to file charges. These investigations lasted over a year, and involved Sarah’s home being raided and her medical records being seized. Some have accused the Metropolitan Police Force of wasting police time in trying to secure a conviction, and Sarah’s legal team have made an official complaint about the conduct of police officers in the case.
The psychologist in the case told the court that Sarah was in complete denial about her HIV infection because she was convinced that she would be rejected by her friends and lovers if she disclosed her status. She was terrified of the stigma attached to HIV. However, on being found guilty, she was not offered counselling, but was imprisoned for 32 months, separating her from her young son.
She also faced deep hostility from much of the tabloid press, who labelled her “pure evil” and an “AIDS avenger”, so perpetuating the stigma and idea of ‘blame’ that caused Miss Porter not to disclose her status in the first place. Finally, no mention was made of the fact that her lovers also failed to use condoms when having sex with Miss Porter – which it was of course their equal responsibility to do.

In autumn 2006 the Crown Prosecution Service sought views on a public document to explain the way in which it deals with cases involving the intentional or reckless sexual transmission of infections which cause grievous bodily harm. Some of the seven specific consultation questions dealt with the relevance, if any, of the defendant's reliance on medical/clinical advice that he/she received, whether any weight should be given to their ability to ensure the use of protection, and whether the context in which the sexual behaviour occurred should be a relevant factor when determining whether it is the public interest to prosecute. The CPS consulted members of sexual health community organisations with professional knowledge in the fields of crime reduction and victim and witness support in drafting the policy, but the content was the responsibility of the CPS alone. The final version of the public document was published in mid-2007:

http://www.cps.gov.uk/Publications/docs/equality_eia_sti.pdf

The policy statement covers the Code for Crown Prosecutors and how it is applied in all cases; the offences that the CPS will consider in relation to cases of the intentional or reckless sexual transmission of infection and what the CPS needs to prove; the application of the public interest in such cases; and witness and victim care issues.

The question has to be asked whether the criminal law is effective in preventing HIV transmission. Criminalization of HIV may drive people away from public health initiatives that have proven effective, such as HIV testing, counselling and support, and partner notification. The public attention given to criminal prosecutions may create a false sense of security that the law will protect people from HIV infection. It may also undermine the message that every person is responsible for his or her own sexual health, and there are wide-ranging implications for human rights, minority groups, invasion of privacy, and medical ethics re. confidentiality. As Lowbury & Kinghorn put it neatly in the British Medical Journal 2006: "Putting aside the difficulties in attributing who infected whom, we would argue that, in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many. "